July 2014 Bar Bulletin
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July 2014 Bar Bulletin

The 22nd Amendment: We Can't Get Fooled Again

By Gene Barton


Each night before I go to bed, I give thanks for these 56 words:

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

Seriously, I kid. But in case you don't recognize it, that's the gist of the 22nd Amendment. There's more, i.e., the "Truman Clause," but thanks to George Washington, Franklin D. Roosevelt, the fear of kings and the 80th Congress, George Bush could not and Barack Obama cannot be elected to a third term.

The "tradition" of the two-terms-and-you're-out president - violated by FDR - is steeped in both myth and history. It has been said that Washington politely demurred when he was asked to consider a third term, to which he most assuredly would have been elected - but not unanimously, as he was the first two times around.1 The "tradition" thus became that if three terms were too good for the Father of Our Country, then they were too good for all lesser mortals.

Truth be told, Washington never wanted a second term, let alone a third one. Thus, they had a hard time keeping that George around in the days leading up to John Adams' inauguration. He wanted nothing more than to retire to Mount Vernon, where he died on December 14, 1799, after catching a chill in a winter storm. In other words, he likely would not have survived a third term; the first two were too hard. Nation building, followed by nation preserving - not to mention eight years of revolution - will do that to a guy.

It's also been said that when Thomas Jefferson was being beseeched to consider a third term in early 1807, he cited Washington as indelible precedent. "[H]e was reported to have told a senator that he regarded the precedent of George Washington as obligatory and that he himself had consistently favored rotation in public office."2 At the same time, Jefferson was writing his daughter and others, principally John Dickinson, that he looked forward to retirement. "I am tired of an office where I can do no more good than many others, who would be glad to be employed in it," Jefferson wrote to Dickinson. "To myself, personally, it brings nothing but unceasing drudgery and daily loss of friends."3 Like Washington, eight years had been more than enough for the Sage from Monticello.

The history of the four-year term itself seems to be mystery wrapped in an enigma. At the Constitutional Convention in Philadelphia in 1787, the term of office was only one of many spirited debates involving the office of the "Executive" - the name itself was one, before the delegates settled on "President."

In the initial debates, suggestions for the executive's term of office ranged from three years with a right of re-election to seven years "without re-eligibility." There was a proposal for a three-year term with a possibility of up to three terms. In voting on the Virginia Plan in late May, the delegates narrowly approved one seven-year term.4

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